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Over the past few years a significant movement has been under way to institute green chemistry laws that would fundamentally change how chemicals are regulated and how the products that contain them are ultimately formulated. With its touted benefits, including safer products, the reduction of waste, elimination of end-of-the-pipe treatment, reduced energy use, and improved competitiveness; it seems hard to argue against green chemistry. That is, until the details are confronted as to how to make it happen through laws and regulation. Once this is taken into account along with the costs, it quickly becomes a complicated equation, although not necessarily insurmountable. Yet compounding the problem is a real possibility of disparate programs at the federal, state, and even local level. No matter where one stands on the political spectrum or on green chemistry, eventually too much uncoordinated, far-ranging regulation cannot be a good thing.

The foremost example of this is pending federal legislation, S.847, The Safe Chemicals Act of 2011, and California’s Green Chemistry Initiative. While some beyond California’s borders may rejoice that it is merely a California problem, they should think again. California’s green chemistry regulation promises to have far-reaching consequences beyond the state’s borders, with or without the enactment of S.847.

Lack of Express Preemption by S.847, The Safe Chemicals Act of 2011

In the last Congress, bills to reform the aging President Ford-era Toxic Substances Control Act (TSCA) failed to get traction. Of course, the economy likely had much to do with it. On April 14, 2011, Senator Frank Lautenberg introduced S.847, The Safe Chemicals Act of 2011, in another attempt to substantially amend TSCA. As proposed, S.847 provides that it does not preempt actions by states or political subdivisions, unless compliance with both the Act and the state or political subdivision requirement is impossible.

It has been reported that action on S.847 might not occur until the second half of this year, if not until 2012, the economy cooperating. Even so, complicated as it may be to reach consensus on a green chemistry program at the federal level, other actions afoot taking form at the state level will undoubtedly compound the complexity of green chemistry regulation, if not preempted or otherwise corralled.

California Is Taking the Lead Again With Its Regulation for Safer Products

While many states have begun to enact standards for select substances in particular products one by one, such as lead and bisphenol A in children’s products and phthalates in plastics, this year California marks the 25th anniversary of its Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65. Proposition 65 offers valuable lessons as to what may be in store for the country if the coordination of green chemistry programs and preemption is not reckoned with. Proposition 65 has essentially turned out to be the nation’s first green chemistry law, and it has ultimately touched the formulation of products sold in every state of the union. Proposition 65 requires that businesses provide clear and reasonable warnings if an exposure occurs to any of the hundreds of substances designated on a list prepared pursuant to the statute. In many instances, rather than warn, businesses limit the chemicals in their products. For all intents and purposes, Proposition 65 has amounted to a national standard. Given the significance of the California marketplace and the burden of otherwise manufacturing and distributing different product formulations in and outside of California, businesses often choose to reformulate nationwide to comply with Proposition 65. While many chalked this up as a success of Proposition 65, this ignores the immense costs that come with these piecemeal standards, which are usually derived from settlements from private bounty hunter lawsuits that often have little consideration as to addressing the highest overall health risks and priorities for our society.

Now California is going it alone again with its Green Chemistry Initiative. Enacted by the California Legislature in 2008, AB 1879 requires the California Department of Toxic Substances Control (DTSC) to adopt regulations by January 1, 2011, to identify and prioritize chemicals of concern, to evaluate alternatives, and to regulate products with chemicals of concern. A sister bill, SB 509, requires California to create an online, public Toxics Information Clearinghouse to include information on the toxicity and hazard traits of chemicals.

While noble in intent, the current status of California’s green chemistry regulations serves to demonstrate that an effective green chemistry program that balances the considerations of all stakeholders is no simple task. California spent two years with its Green Ribbon Science Panel conducting public workshops, holding stakeholder meetings, and issuing conceptual flow charts, outlines, and preliminary drafts before officially publishing its proposed Regulations for Safer Products in September 2010. Yet, after an onslaught of public comments, in November 2010, to the surprise of many, DTSC reproposed a substantially revised regulation. Even the European Union, which has its own green chemistry programs, such as REACH, expressed concerns that California’s proposed regulations would create de facto “blacklisted” products running afoul of the Technical Barriers of Trade Agreement at the World Trade Organization. With apparently no one satisfied and despite a statutory deadline of January 1, 2011, DTSC put the brakes on the draft regulation and reconvened its Green Ribbon Science Panel to further vet programmatic issues brought up in the public comment process. DTSC has essentially gone back to the sounding board, if not the drawing board.

Better Attention to Coordination of Green Chemistry Programs Will Be to the Benefit of All

Considering California’s experience and the potential for a federal program through TSCA reform, the nation is on course for having multiple uncoordinated, differing green chemistry regulations. California’s attempts clearly demonstrate that there are legitimate concerns about the many moving pieces for such a program, the effects of which will ultimately not be limited to its borders. The odds are high that any program instituted at the federal level will have different, but overlapping, provisions from state programs. Sometimes too much of a good thing does not make it better. In light of the status of TSCA reform and California’s developing regulation, it’s not too late to do something about it.

Peter Duchesneau is a partner in the Los Angeles office of Manatt, Phelps & Phillips LLP and focuses his practice on environmental law involving litigation, administrative proceedings, regulatory compliance and business transactions. He holds a B.S. degree in Chemical Engineering, is admitted to practice before the U.S. Patent and Trademark Office, and has significant experience with emerging chemicals and counseling clients on regulatory compliance involving green chemistry and other matters. Mr. Duchesneau can be reached at (310) 312-4209 or pduchesneau@manatt.com.